Episodi
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Criminal defense lawyers are professional storm chasers. We seek out anxiety provoking situations. If all were well in our clients’ lives they would not be calling us. “Trial” is the culmination of our profession. But we are often poor emergency responders when it comes to putting out fires or dealing with stormy situations in our own law practices. In this episode, Jake gives you the playbook for quelling the current and future storms that seek to destroy your law firm. Put on your rain gear and hunker down for this week’s episode!
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Adventure! On today’s episode Jake discuss responding to the call to adventure in your personal and professional life. C.S. Lewis wrote in The Lion, the Witch, and the Wardrobe that “some journeys take us far from home. Some adventures lead us to our destiny.” The most fulfilling lives and law practices are lived and built by individuals who accept the call to embark on a journey of discomfort and suffering in pursuit of something bigger than themselves. Get ready to trailblaze with Jake!
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On today’s episode, Jake talks shop with Los Angeles criminal defense attorney, R.J. Dreiling. After 15 years of prosecuting crime, including a number of high-profile cases, R.J. decided to start his own defense firm less than 2 year ago. Listen as R.J. explains why he is so passionate about delivering the best possible outcome for his clients. Jake and R.J. also discuss the importance of finding the work you love doing within your firm. If you are looking to hang your shingle and want to get your practice set on the right footing, don’t miss out on today’s episode!
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On today’s episode, Jake talks shop with Utah criminal defense attorney, Josh Baron. Josh literally wrote the book on The Business of Criminal Law and shares how to build a practice fueled by referrals while also enjoying life as a criminal defense attorney. If you love the intersection of business and criminal defense, Josh is your kind of lawyer and this episode is for you!
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On today’s episode, Jake discusses the Rule-Out Method for framing your criminal trial with Charlotte criminal defense attorney Justin Olsinski. Justin is a passionate advocate who knew from the moment he entered law school that he wanted to be a criminal defense attorney. Listen to Justin share how he has used the principles of David Ball’s The Rule-Out Method of Criminal Defense to help juries understand and apply reasonable doubt in a criminal case. If you handle trial work in Superior Court, this episode is a must listen!
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On today’s episode, Jake looks at some of the major changes that have occurred in the legal marketplace since he began practicing 15 years ago to predict some of the major changes coming to the legal landscape. If you are looking to build a practice designed to thrive during the next decade this episode is for you!
Highlights:
· Discover how YouTube and Google Reviews have put a premium on client experience.
· Uncover the necessity of technological education for all legal professionals and the need to include people in your circle who will keep you on the cutting edge of technology.
· Learn how non-lawyer firm ownership is already changing the game in states that still allow only attorneys to own a law firm.
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On today’s episode, Warren Hynson shares best practices for trial lawyers to preserve issues for appeal. Warren’s law firm, Hynson Law, exclusively handles criminal appeals and post-conviction relief issues across the State of North Carolina. If you want to be a better trial lawyer and have a better understanding of how a conviction can be overturned, don’t miss out on Warren’s advice on this week’s episode!
Highlights:
· Understand the simple steps for a Defendant to perfect an appeal following a guilty plea or trial.
· Hear Warren’s suggestions for discussing appeal options with your client.
· Uncover the most common mistakes that Warren sees trial counsel make in criminal cases and how to avoid them.
· Learn the various types of post-conviction relief available and when each should be utilized.
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On today’s episode, Jake discusses the importance of finding a Worthy Rival in the courtroom and in business. This concept is based on a chapter from Simon Sinek’s The Infinite Game, the July book of the month for the Freedom Fighters Book Club. If you want to take your trial skills and business acumen to the next level, go find and learn from a worthy rival.
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On today’s episode Jake reviews the landmark U.S. Supreme Court case of Smith v. Arizona. This 9-0 decision provides clarity on the Sixth Amendment’s Confrontation Clause violations that occur when the state tries to substitute a lab analyst at trial who did not herself test the substances or blood at the lab. Don’t miss the big implications this opinion has on your blood draw DWI case!
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On today’s episode of the podcast Jake looks back at the most influential North Carolina DWI cases of the past year. Abstracts of the cases are found below.
CHECKPOINTS
State v. Alvarez, 894 S.E.2d 737, No. 278PA21 (N.C. 2023)
Facts: Rowan County Sheriff’s Office set up a checkpoint. The checkpoint was purportedly in response to a high-speed fatality accident that had occurred at that location two days earlier. No officers on scene were checking speeding. Defendant’s passenger side wheels came off the road and onto the grass prior to stopping at the checkpoint. One of the officers on scene testified that this behavior led him to believe the Defendant might be driving while impaired.
Procedural History: Both the trial court (superior court) and the Court of Appeals (State v. Alvarez, 860 S.E.2d 45, 2021-NCCOA-375 (2021) (unpublished) found the checkpoint did not have a proper primary programmatic purpose. The Court of Appeals appears to call into question a checkpoint set up for “all chapter 20 violations” as possible general crime control.
Holding: The Supreme Court reversed the Court of Appeals finding that there was reasonable suspicion to stop the vehicle due to the lane violation but did not address the findings of the Court of Appeals regarding the Constitutionality of the checkpoint. Use the Court of Appeals opinion to attack a checkpoint based on the lack of a proper primary programmatic purpose.
REASONABLE SUSPICION
Sate v. Peak, 892 S.E.2d 925, No. COA23-312 (N.C. App. 2023) (unpublished)
Facts: Stopping officer was highly specialized in DWI investigations. Defendant delayed for 10-seconds at a traffic light after it turned green. There were two open bars within a quarter mile radius of the stop location. Defendant crossed over the yellow lines with both left tires into the opposite lane of travel. Defendant was travelling at one to two miles per hour.
Holding: Reasonable suspicion existed to stop Defendant.
PROBABLE CAUSE
State v. Woolard, 894 S.E.2d 717, No. 208PA22 (N.C. 2023)
Facts: Officer saw Defendant cross centerline six or seven times. Officer active blue lights and Defendant quickly stopped his vehicle. Upon initial approach, Defendant “seemed normal” to the officer. After asking about the driving, Defendant told the officer that there were bees in his truck that he was trying to get out. As they spoke, the officer noticed an odor of alcohol, flushed cheeks, and red and glassy eyes. Defendant seemed coherent to the officer. Defendant admitted to having “a couple beers earlier.” Officer administered two PBTs, but these were excluded from consideration because they were not performed correctly. Officer also administered the HGN test, during which he saw six of six clues. Officer placed Defendant under arrest for DWI.
Procedural History: Defendant was granted a preliminary indication that no PC existed in District Court. The State appealed to Superior Court where the Defendant again prevailed and the case was sent back to District Court for a final order granting suppression. After the District Court entered its final order the State filed a petition for writ of certiorari to the Court of Appeals which was denied. The State then filed a petition for writ of certiorari to the North Carolina Supreme Court which was granted. There was no transcript of District Court proceedings or record on appeal for the Supreme Court to review.
Holding: The Supreme Court found it had discretionary authority to rule on the merits of the case and found probable cause.
EXPERT TESTIMONY
State v. Williams, 891 S.E.2d 499, No. COA22-1015 (N.C. App. 2023) (unpublished).
Holding: It was not error for the trial court to allow a DRE to offer testimony about a DWI investigation that the DRE was not involved in, when the DRE stated that she could not testify (i.e. give an opinion) as to whether the Defendant was impaired.
Practice Tip: This case is from Buncombe County, where the State routinely calls a DRE that has not done a real time DRE evaluation in a particular case to give after-the-fact analysis and opinion at trial. Here’s the beef: There is no opinion being offered by investigating officers [State v. Lewis, 2022-NCCOA-887 (2022)] or by the DRE that the Defendant is impaired. Point out that no officer involved in the investigation or brought in as an expert to bolster the State’s case can give an opinion of drug impairment.
BREATH TEST
State v. Forney, No. COA23-338 (N.C. App. 2024)
Facts: During chemical breath testing, the officer noticed Defendant had gum in his mouth, and had Defendant spit out the gum between the first and second breath tests, both of which resulted in a .11 BAC. The chemical analyst did not restart the observation period or seek an additional breath test. Both the State and the Defendant had experts testify at trial on whether breath testing might be impacted by foreign objects in the mouth.
Burden of Proof: The Court noted that as the proponent of the breath test evidence in an impaired driving case, the State bears the burden of proving compliance with the “observation period” requirement set out in N.C. Gen. Stat. 20-139.1.
Holding: The provisions of the Department of Health and Human Services requiring an observation period by the chemical analyst were violated in this case and a new fifteen-minute observation period should have occurred after the Defendant spat the gum out of his mouth before taking breath samples. The results of the breath test should have been suppressed, but the Court concluded that in this case the admission of the BAC results was harmless error.
Practice Tip: The Court in dicta noted “the Intoximeter estimates alcohol in the blood (BAC) based on a measurement of alcohol in the breath—a ratio which in reality varies amongst different people—by using a single specific ratio to standardize the testing of all subjects.” If you are using Henry’s Law to characterize the breath result as an estimate in a .08+ case, you can read this language to give credence to your argument.
BLOOD DRAW
State v. Burris, 289 N.C. App. 535, 890 S.E.2d 539, No. COA22-408 (2023) (unpublished)
Note: Case is currently pending appeal to the N.C. Supreme Court.
Relevant Facts: Single vehicle accident. Officer found Defendant lying trapped under a steel fence outside of a vehicle that had sustained extensive damage. The Defendant was unresponsive and bleeding excessively. The officer noted that Defendant smelled of alcohol and found beer cans both inside and outside the vehicle. The Defendant was taken to the hospital, still unconscious. The officer obtained a warrantless search of Defendant’s blood while Defendant was unconscious.
Holding: Based on Mitchell v. Wisconsin, 588 U.S. ___, 139 S. Ct. 2525 (2019) the Court of Appeals found that exigent circumstances almost always exist to conduct a warrantless blood draw from an unconscious driver. This opinion is at odds with State v. Romano, 369 N.C. 678, 800 S.E.2d 644, No. 199PA16 (2017). Both Romano and Burris were in Buncombe County.
Practice Tip: Use the Court’s findings in Romano to craft your explanation as to why exigent circumstances do not exist in your case. Also, look at Judge Tyson’s scathing dissent in Burris.
State v. Russell, 891 S.E.2d 502, No. COA22-1059 (2023) (unpublished)
Holding: The Confrontation Clause is not violated where a substitute expert from the SBI testifies (and is subject to cross-examination) using another SBI agent’s previously generated report, which otherwise may be inadmissible, in forming an independent expert opinion.
SUFFICIENCY OF EVIDENCE
State v. Burris, 289 N.C. App. 535, 890 S.E.2d 539, No. COA22-408 (2023) (unpublished)
Note: Case is currently pending appeal to the N.C. Supreme Court.
Relevant Facts: Single vehicle accident. Officer found Defendant lying trapped under a steel fence outside of a vehicle that had sustained extensive damage. The Defendant was unresponsive and bleeding excessively. The officer noted that Defendant smelled of alcohol and found beer cans both inside and outside the vehicle. The Defendant was taken to the hospital, still unconscious. The officer determined that the Defendant was the owner of the vehicle and found no evidence of any other occupant.
Holding: The State presented sufficient evidence of driving to survive a motion to dismiss. Moreover, the officer describing the Defendant at trial as “the driver” without personally observing the same was admitted without error due to the Court giving a curative instruction.
Practice Tip: Distinguish the facts of Burris and use State v. Ray, 54 N.C. App. 473, 283 S.E.2d 823 (1981), State v. Eldred, 815 S.E.2d 742, No. COA17-795 (2018), and State v. Kraft, No. COA18-330 (2018) (unpublished) to argue for lack of sufficiency of the evidence in your case.
State v. Jones, 894 S.E.2d 290, No. COA23-254 (2023) (unpublished)
Facts: Defendant admitted to being in a minor traffic accident. During the accident investigation, the investigating officer noticed an odor of alcohol in Defendant’s car (where he was sitting), slurred speech, and Defendant admitted to drinking. Defendant blew positive on a PBT, showed six of six clues on HGN, and refused chemical testing after arrest.
Holding: In the light most favorable to the State, the State introduced substantial evidence that could prove Defendant was appreciably impaired and the trial court did not err in denying the Defendant’s motion to dismiss at the close of the State’s evidence.
PRE-TRIAL RELEASE & KNOLL
Pretrial Integrity Act – This act, in part, limits the authority of a magistrate judge to set conditions of pre-trial release for a person charged with DWI if the offense occurs while the defendant was on pretrial release for another pending proceeding. Only a district court judge has the authority to set the conditions of pretrial release for the first 48 hours following the defendant coming into custody for an alleged DWI offense if the defendant was on pre-trial release at the time of the newly alleged DWI.
Practice Tip: This new release procedure is hard to square with State v. Knoll, 322 N.C. 535, 369 S.E.2d 558 (1988). Consider these concluding statements to the Supreme Court’s decision in Knoll: “Each defendant's confinement in jail indeed came during the crucial period in which he could have gathered evidence in his behalf by having friends and family observe him and form opinions as to his condition following arrest. This opportunity to gather evidence and to prepare a case in his own defense was lost to each defendant as a direct result of a lack of information during processing as to numerous important rights and because of the commitment to jail. The lost opportunities, in all three cases, to secure independent proof of sobriety, and the lost chance, in one of the cases, to secure a second test for blood alcohol content constitute prejudice to the defendants in these cases. That the deprivations occurred through the inadvertence rather than the wrongful purpose of the magistrate renders them no less prejudicial.” (emphasis added)
State v. C.K.D., 895 S.E.2d 923, No. COA23-204 (2023) (unpublished)
Note: Case is currently pending appeal to the N.C. Supreme Court.
Facts: Defendant was arrested a registered a .17 BAC. Defendant was transported to the Iredell County Magistrate’s Office where the magistrate set a $2,500.00 unsecured bond and detained defendant until he was sober or a sober responsible adult was willing to assume responsibility. The magistrate filled out a detention of impaired driving form and found “by clear and convincing evidence” that Defendant’s condition of “BAC .17, Red Glassy Eyes, Slurred Speech, Odor of Alcohol” presented a danger “of physical injury to the defendant or others or damage to property” if he were released. Defendant declined to use a phone to call his wife because he did not want to wake her, or their young children. He also checked the box indicating “I do not wish to contact anyone for the purposes of observing me at the jail or administering an additional chemical analysis.” Defendant asked officers if he could call a cab to take him home and that he had funds to pay for a cab. Defendant testified that he could be home in approximately 25 minutes if he had been allowed to take a cab home. Defendant remained in Iredell County Jail for approximately 11 hours prior to his release. During this time he was checked twice by jail staff and told he would be released when he blew a .00.
Holding: The trial court did not err in dismissing the DWI charge against Defendant based on State v. Knoll, 322 N.C. 535, 369 S.E.2d 558 (1988). “Even if defendant waived his right to have someone observe him at the jail, he did not waive his right to have friends or family observe his condition outside the jail, which is what would have occurred had he been permitted to call a taxi and return home to his wife.”
Note: The Court ruled that the magistrate’s findings of “BAC .17, Red Glassy Eyes, Slurred Speech, Odor of Alcohol” were not sufficient to support a conclusion that Defendant was a threat and should not have been released.
PLEA AND SENTENCING
State v. Harper, 894 S.E.2d 798, No. COA23-206 (N.C. App. 2023)
Holding: The trial court erred by failing to arrest judgment on Defendant’s conviction for DWI, as it is a lesser-included offense of serious injury by vehicle for which Defendant was also convicted.
State v. Smith, No. COA22-621 (2024) (unpublished)
Procedural Posture: Defendant brought what the Court interpreted as the functional equivalent of a post-sentencing MAR due in part to her attorney not advising her of the collateral consequences on her out-of-state driver’s license.
Holding: The Court rejected the Defendant’s attempt to analogize her attorney’s lack of explanation regarding the collateral consequences of her license to the immigration collateral consequences addressed by Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473 (2010).
Practice Tip: For any client with an out of state driver’s license refer them to an attorney in the client’s home state to discuss licensing consequences. Consider using the National College of DUI Defense Member Directory.
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On today’s episode, Jake resumes the Warriors on the Battlefield Series with the highly entertaining Lex-Jordan Ibegbu. Jordan has built a truly amazing criminal defense practice through a combination of hard work, networking, and showcasing his individuality (i.e. brand). Don’t miss Jordan’s engaging tips for launching your law firm to new heights!
Highlights:
· Discover how to make your brand to be unique and memorable.
· Listen to Jordan explain how he attacks appreciable impairment at trial.
· Learn how to build your client base through networking.
· Uncover why Jordan believes that he has to consistently deliver better than expected results for his clients.
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On today’s episode, Jake shares a reflection on the greeting he beings every episode with. If you are a criminal defense lawyer in need of a pep talk about the importance of your work and want to discover what it means to be a true Freedom Fighter, this episode is for you.
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On today’s episode, Jake reflects on why most networking opportunities are a waste of time and how to separate the wheat from the chaff when it comes to identifying a worthwhile event to attend.
Highlights:
· See the mistake that event organizers make when they fail to attract a niche audience.
· Discover the limitation of passing out your business card at a networking event.
· Find out why big conferences make it hard to initiate a long-term referral relationship.
· Uncover the reason that you have difficulty speaking with another firm’s decision maker at a legal conference.
· Learn the importance of a give versus ask mentality when mingling with other professionals.
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On today’s episode I have the great blessing to sit down and talk shop with my law partner Gint Krulikas. Gint is an absolute beast when it comes to getting things done. His methodical approach to managing cases and client follow up has been the model for the client experience we strive to deliver. If you want to grow your law firm then listen in and take notes!
Highlights:
· Learn how Gint built two of our most successful offices from nothing.
· Discover how Gint organizes his high-octane schedule to maximize knocking out tasks.
· Uncover some of the biggest culture improvements at the firm that Gint has observed and been part of since he began working as an intern over a decade ago.
· Listen as Gint describes his day-to-day life in the early days of practicing as a lawyer as he was tasked with opening a practice in a completely new market.
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On today’s episode Jake sits down with former drug recognition expert Marco Aureliano, who sheds light on some of the key mistakes that field officers and DREs make during a drug impaired driving investigation. Marco has recently founded KGM Logistics, offering expert witness testimony and training in DUI cases. If you want to take your drug impaired driving defense to the next level, don’t miss this conversation!
Highlights:
· Discover some of the attack points when the State utilizes a DRE at trial that did not do an evaluation of the Defendant at the time of arrest.
· Uncover the information contained in DRE log reports and why this information can be helpful in defending a DWI.
· Learn some of the best practices that Marco suggests for officers and DREs investigating a potential drug impaired driver.
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On today’s episode Jake is rejoined by Allison Williams of the Law Firm Mentor who was on the podcast back on Episode 131. In today’s episode Allison walks extensively through the process for hiring and training members of your intake team. If you are contemplating hiring someone to answer phones at your office or looking to help your current receptionist/intake team become more efficient at what they do, this episode is a must listen for you (and your team)!
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On today’s episode, Jake reflects on the productivity he experienced during several quiet days at the office. Most criminal defense lawyers in district court are used to jumping from one courtroom to the next, calling a client back, making a jail visit, watching hours of body camera, and then figuring out how to get the phone to ring more (which is odd because you already don’t have time to answer). Because you have so many to-dos on your list, you trick yourself into believing you are accomplished multi-taskers. If you want to learn 10 easy ways to become more productive, this episode is for you!
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On today’s episode, Jake looks at an issue he experienced during the early days of practice: how to find a measuring stick for success. As Jake was building his law firm in the early days the main gage of success was to look at how other lawyers in criminal defense in Western North Carolina doing it. How do they dress? How many cases do they have on the docket? How does their website look? In today’s episode, Jake discusses why these external markers of success are not the true measuring stick for comparing your firm with the competition.
Highlights:
· Discover how to find the secret sauce of another law firm (spoiler: the secret sauce is made up of hundreds of ingredients aged over many years).
· Learn why you can’t get a good measuring stick of success based on the external success indicators of your competition.
· Find out why getting a behind the scenes look at another firm is so important for your growth.
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On today’s episode, Jake is joined by his friend Steven Thomas as we continue the Warriors on the Battlefield series highlighting young leaders in criminal defense. Steven is an associate at Driving Defense Law, a division of McCormick Law & Consulting. Entertaining and insightful, make sure to have pen and paper close by as Steven shares some of the keys to his firm’s growth in the practice area of criminal defense.
Highlights:
· Steven describes why a hunger for knowledge is key to an associate’s success.
· Discover why Steven believes that improving your client experience is essential to profitability as firms drastically focus on this area of their businesses over the next decade.
· Discover three easy ways to advance your value to your firm.
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On today’s episode, Banks Huntley joins Jake as we continue the Warriors on the Battlefield series highlighting young leaders in criminal defense. Banks is a former prosecutor and managing partner at the Law Offices of Banks Huntley, PLLC in Charlotte. Banks describes why he decided to open his own shop after working as an assistant district attorney and provides great practical wisdom on how to take the leap into private practice.
Highlights:
· Banks describes how selling timeshares served his business.
· Hear some unique insights on the mindset of a prosecutor as Banks shares his experience at the DA’s Office.
· Discover why you should hire an assistant (or additional help) ASAP.
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